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GAHC010239922024

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THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/5997/2024

PIJUSH KANTI CHOWDHURY

PROPRIETOR OF PUSHPANJALI VARIETIES, SON OF LATE PABITRA

KUMAR CHOUDHURY, RESIDENT OF CHENGKURI ROAD, AZAD HIND

LANE, BYE LANE NO.3, HOUSE NO. 09, SILCHAR- 788007, DISTRICT-

CACHAR, ASSAM

VERSUS

THE STATE OF ASSAM AND 7 ORS

REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE

GOVERNMENT OF ASSAM, DEPARTMENT OF MUNICIPAL

ADMINISTRATION, DISPUR, GUWAHATI- 781006

2:THE CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM

DEPARTMENT OF HOUSING AND URBAN AFFAIRS

DISPUR

GUWAHATI- 781006

3:THE DIRECTOR OF MUNICIPAL ADMINISTRATION

GUWAHATI-6

DISPUR

ASSAM

4:THE DISTRICT COMMISSIONER

CACHAR

SILCHAR

ASSAM

5:THE DISTRICT DEVELOPMENT COMMISSIONER CUM CHAIRMAN

TENDER EVALUATION COMMITTEE

CACHAR

SILCHAR

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6:THE SILCHAR MUNICIPAL BOARD

CACHAR

SILCHAR

REPRESENTED BY THE EXECUTIVE OFFICER

7:THE EXECUTIVE OFFICER

SILCHAR MUNICIPAL BOARD

CACHAR

SILCHAR

8:SRI DIGANTA MONDAL

PROPRIETOR

ISTADAM

SON OF DULAL MONDAL

RESIDENT OF MALUGRAM

SILCHAR-788002

DISTRICT- CACHAR

ASSAM

MOBILE NO.- 939512382

Advocate for the Petitioner : MR. D CHAKRABARTY, MS D.CHAKRABARTY

Advocate for the Respondent : GA, ASSAM, MS. R DUTTA(R-8),MR. S KATAKI (R-8),MS S

MOCHAHARI(R-6,7),MR. S DUTTA(R-6,7),MR S DUTTA(R-6,7),MS K BORAH(R-6,7),MR

SISHIR DUTTA(R-6,7),SC, SILCHAR MUNICIPAL BOARD

HON'BLE MR.JUSTICE SANJAY KUMAR MEDHI

Advocate for the petitioner : Shri D. Chakraborty, Advocate.

Advocates for the respondents : Shri M. Chetia, G.A., Assam;

Shri S. Dutta, Sr. Advocate, R/ 6 & 7;

Ms. S. Mochahari, Advocate&

Shri S. Kataki, R/8.

Date on which judgment is : 30.01.2026.

Reserved.

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Date of pronouncement of : 17.02.2026.

Judgment.

Whether the pronouncement : NA.

is of the operative part of the

judgment?

Whether the full judgment : Yes.

has been pronounced?

JUDGMENT & ORDER

The extra-ordinary jurisdiction of this Court has been sought to be invoked

by filing this application under Article 226 of the Constitution of India by putting

to challenge the outcome of a Notice Inviting Tender (NIT) dated 22.07.2014

issued by the Executive Officer, Silchar Municipal Board for operation and

maintenance of two parks. The relief prayed for in this petition reads as follows:

“Under the aforestated premises, it is humbly prayed that Your Lordships

may be graciously pleased to admit this Writ Petition, call for the records

pertaining to Notice Inviting Tender bearing no. SMGR-80/ AMRUT/ 2024-

257 11 dated 22.07.2024 issued by Respondent No. 7 and issue Notice/

Rule calling upon the Respondents to show cause as to why, a Writ in the

nature of Mandamus and/ or Certiorari and/ or any other Writ, direction

or Order of the like nature be not issued directing the Respondent

Authorities to allot the work in connection with Operation & Maintenance

of the Gandhi Bagh Park and Norsingtola Park pursuant to the Notice

Inviting Tender bearing no. SMGR-80, AMRUT/ 2024-25/ 11 dated

22.07.2024 issued by Respondent No. 7 in favour of the Petitioner in view

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of the highest offer made by the Petitioner and to set aside any Work

Order, that might have been issued in favour of Respondent No. 8 whose

offer is lesser than the Petitioner and on hearing the cause or causes as

may be shown, to make the rule absolute and/or to pass such further

other order as your Lordship may deem fit and proper.

AND

Pending adjudication of this writ petition, Your Lordships may be

graciously pleased to suspend any Work Order, that might have been

issued in favour of Respondent No. 8 in connection with Operation &

Maintenance of the Gandhi Baah Park and Norsingtola Park with a

direction to Respondent No. 7 to directly carry out Operation

& Maintenance of the Gandhi Bagh Park and Norsingtola Park till the final

adjudication of the Writ Petition.”

2. The facts, as projected in the petition, in brief, are that Silchar Municipal

Board (hereinafter SMB) had issued an NIT dated 22.07.2024 for Operation and

Maintenance of the Gandhi Bagh Park and Norsingtola Park. The petitioner, who

claims to be eligible for the allotment of the aforesaid work, had offered his bid

whereby, 57% of the collection would be the share of the SMB. On the other

hand, the respondent no. 8 had made an offer of 37%. The petitioner was

directed to appear before the Tender Evaluation Committee and to place the

plan. However, the petitioner could see that the respondent no. 8 was operating

the work of maintenance. The petitioner could learn that on the grounds of lack

of experience and non-furnishing of certain documents, his bid was rejected. It

was also learnt that the work was allotted to the respondent no. 8 at the rate

offered by the petitioner. The writ petition was accordingly instituted.

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3. I have heard Shri D. Chakraborty, learned counsel for the petitioner. I have

also heard Shri M. Chetia, learned State Counsel, Assam; Shri S. Dutta, learned

Senior Counsel assisted by Ms. S. Mochahari, for the respondent nos. 6 and 7

and Shri S. Kataki, learned counsel for the respondent no. 8.

4. Shri Chakraborty, learned counsel for the petitioner has submitted that the

impugned decision to deny the work to the petitioner in spite of him emerging

as the highest bidder is illegal and arbitrary. He has submitted that the offer

made by his client was 57% which was much higher than that of the offer of

the respondent no. 8 which was 37%. He has also submitted that the reasons

which could be gathered for such decision were lack of experience and non-

submission of certain documents and the allotment has been made with the

respondent no. 8 at the offer of the petitioner by private negotiation. He

submits that both the reasons are factually incorrect and without any proper

evaluation, the impugned decision has been taken. He has informed this Court

that the petitioner came to know about the work order dated 25.09.2024 issued

in favour of the respondent no. 8 after filing of the writ petition and therefore,

the same is not a specific subject matter of challenge.

5. Per contra, Shri S. Dutta, learned Senior Counsel assisted by Ms. S.

Mochahari, learned counsel for the respondent nos. 6 and 7 has strenuously

opposed the writ petition. By drawing the attention of this Court to the affidavit-

in-opposition filed on 08.01.2025, the learned Senior Counsel has submitted

that the decision making process is based on relevant and germane

considerations and has been taken bona fide. By drawing the attention of this

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Court to the NIT dated 22.07.2024, more particularly, the conditions thereof, he

has submitted that against Sl. No. 5 of the list of mandatory documents, there is

a requirement to furnish certificate in respect of satisfactory completion of

similar nature of works under the Government or Semi Government department

during the last two years along with necessary testimonials. He has submitted

that under Clause 27 of the Terms and Conditions, there is a mention of the

amusement items in the park as provided in Annexure-A. On the other hand,

from the Experience Certificate furnished by the petitioner in the district of

Hailakandi, apart from the duration being of 6 months, the same was only with

regard to installation and maintenance of LED lights with poles and the visitors

sitting arrangement. He has submitted that the scope of work is wholly different

for which, the petitioner did not have the experience.

6. Drawing the attention of this Court to the minutes of the meetings of SMB

held on 31.07.2024, 19.08.2024 and 30.08.2024, the learned Senior Counsel for

the respondent nos. 6 and 7 has submitted that all the relevant factors were

duly considered and the credentials of the petitioner were verified from the

Hailakandi authority from where, it could be revealed that the experience of the

petitioner was not commensurate with the scope of the aforesaid NIT and the

maintenance cost for the Hailakandi park could not be said to be an appropriate

evaluation yardstick. He has also submitted that the work order dated

25.09.2024 issued in favour of the respondent no.8 has not been specifically

challenged and on this ground alone, the writ petition is liable to be dismissed.

7. The learned Senior Counsel has submitted that the scope of interference by

a writ court in contractual matters is absolutely circumscribed and limited to the

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decision making process. He has also questioned the locus of the petitioner to

maintain the present challenge on the ground that the petitioner is an

unqualified bidder. In support of his submission, the learned Senior Counsel has

relied upon the following case laws:

i)Raunaq International Ltd. Vs. I.V.R. Construction Ltd. & Ors.,

AIR 1999 SC 393;

ii) Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation

Ltd. &Anr., (2016) 16 SCC 818;

iii) Silppi Constructions Contractors Vs. Union of India &Anr.,

(2020) 16 SCC 489;

iv) Agmatel India Pvt. Ltd. Vs. Resoursys Telecom & Ors., (2022)

5 SCCC 362.

8. The case of Raunaq International Ltd. (supra) has been cited to buttress

the argument that to maintain a challenge regarding work of a contract, the

party approaching the Court has to be qualified. In the cases of Afcons

Infrastructure Ltd. (supra), Silppi Constructions Contractors (supra) and

Agmatel India Pvt. Ltd. (supra), the principles to be followed while adjudicating

a matter pertaining to grant of a contract have been laid down. For the sake of

brevity, the observations made by the Hon’ble Supreme court in the case of

Agmatel India Pvt. Ltd. (supra) in which, all the previous principles have been

culled down are extracted hereinbelow:

“26. The above-mentioned statements of law make it amply clear that

the author of the tender document is taken to be the best person to

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understand and appreciate its requirements; and if its interpretation is

manifestly in consonance with the language of the tender document or

sub-serving the purchase of the tender, the Court would prefer to keep

restraint. Further to that, the technical evaluation or comparison by the

Court is impermissible; and even if the interpretation given to the tender

document by the person inviting offers is not as such acceptable to the

Constitutional Court, that, by itself, would not be a reason for interfering

with the interpretation given.”

9. Shri S. Kataki, learned counsel for the respondent no. 8, while endorsing

the submissions made on behalf of the SMB, has raised the issue of locus of the

petitioner. By referring to the affidavit-in-opposition filed on 21.01.2025, the

learned counsel has submitted that the requirement of experience vis-a-vis the

eligibility criteria is essentially connected with similar nature of work. By drawing

the attention of this Court to the scope of work read with Annexure-A containing

the equipment and features of the parks, he has submitted that the experience

claimed by the petitioner is not with regard to such equipment and features and

is only with regard to visitors’ sitting arrangement and maintenance of LED

lights and poles. He has submitted that the experience clause, as such, is not

the subject matter of challenge. He has submitted that the decision was fairly

taken and the records reveal that opportunity was granted to the petitioner to

justify his bid. He has also relied upon the judgment of the Hon’ble Supreme

Court in the case of Silppi Constructions Contractors (supra) and the following

observations have been pressed into service:

“19. This Court being the guardian of fundamental rights is duty bound

to interfere when there is arbitrariness, irrationality, mala fides and bias.

However, this Court in all the aforesaid decisions has cautioned time and

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again that courts should exercise a lot of restraint while exercising their

powers of judicial review in contractual or commercial matters. This Court

is normally loathe to interfere in contractual matters unless a clear-cut

case of arbitrariness or mala fides or bias or irrationality is made out. One

must remember that today many public sector undertakings compete

with the private industry. The contracts entered into between private

parties are not subject to scrutiny under writ jurisdiction. No doubt, the

bodies which are State within the meaning of Article 12 of the

Constitution are bound to act fairly and are amenable to the writ

jurisdiction of superior courts but this discretionary power must be

exercised with a great deal of restraint and caution. The Courts must

realize their limitations and the havoc which needless interference in

commercial matters can cause. In contracts involving technical issues the

courts should be even more reluctant because most of us in judges’ robes

do not have the necessary expertise to adjudicate upon technical issues

beyond our domain. As laid down in the judgments cited above the courts

should not use a magnifying glass while scanning the tenders and make

every small mistake appear like a big blunder. In fact, the courts must

give “fair play in the joints” to the government and public sector

undertakings in matters of contract. Courts must also not interfere where

such interference will cause unnecessary loss to the public exchequer.

20. The essence of the law laid down in the judgments referred to above

is the exercise of restraint and caution; the need for overwhelming public

interest to justify judicial intervention in matters of contract involving the

state instrumentalities; the courts should give way to the opinion of the

experts unless the decision is totally arbitrary or unreasonable; the court

does not sit like a court of appeal over the appropriate authority; the

court must realize that the authority floating the tender is the best judge

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of its requirements and, therefore, the court’s interference should be

minimal. The authority which floats the contract or tender, and has

authored the tender documents is the best judge as to how the

documents have to be interpreted. If two interpretations are possible

then the interpretation of the author must be accepted. The courts will

only interfere to prevent arbitrariness, irrationality, bias, mala fides or

perversity. With this approach in mind we shall deal with the present

case.”

10. Shri Chakraborty, learned counsel for the petitioner, in his rejoinder has

submitted that affidavits in reply have been filed against the affidavits-in-

opposition of the contesting respondents. He has submitted that the

requirement under Clause 27 is only to provide an insurance cover for the

equipment in the park which were given in the list as Annexure-A and the same

cannot be said to constitute the scope of work. He has also submitted that

though the scope of judicial review in contractual matters is limited, there are

certain exceptions wherein interference is permissible, namely, where there is

mala fide exercise of powers, perversity in the process or nepotism and bias. He

submits that in the instant case, all the exceptions are applicable. He has also

submitted that while the NIT described the area as 400 sq. mt., in the affidavit,

the area has been described 6400 sq. mt.

11. Rival submissions have been duly considered and the materials on record

have been carefully examined.

12. Before embarking to adjudicate the issue involved vis-a-vis the submissions

and the materials on record, we are reminded that a writ court, in exercise of

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jurisdiction under Article 226 of the Constitution of India would confine its

powers to examine the decision making process only. Further, the challenge is

with regard to a tender process wherein, scope of such interference is limited.

13. Law is well settled in this field. The Hon’ble Supreme Court, after

discussing the previous case laws on the jurisdiction of a Writ Court qua

contractual matters has laid down the principles which have been already noted

above. In brief, it has been laid down that the scope of judicial review in

contractual matters is absolutely circumscribed as it is the owner who would be

the best judge to determine as to whom the work is to be allotted and how it is

to be done. Of course, there is no bar as such for interference which has to be

on patent illegality, gross unreasonableness/arbitrariness or explicit mala fides in

the decision making process.

14. The principal ground of challenge is that the decision making process is

unreasonable and arbitrary. It may be mentioned that there is no specific

challenge to the work order dated 25.09.2024 made in favour of the respondent

no. 8. As an explanation, it has been contended on behalf of the petitioner that

he came to know about the same after filing of the writ petition. Perusal of the

records would, however, reveal that the writ petition was filed on 12.11.2024.

Therefore, the explanation that the petitioner was not aware of the work order

does not inspire confidence and on the other hand, reflects lack of due

diligence. Nevertheless, taking the aforesaid aspect to be technical in nature,

this Court has proceeded to examine the challenge on its merits.

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15. In the affidavit-in-opposition filed by the SMB, amongst others, copies of

the minutes of meetings held on 31.07.2024, 19.08.2024 and 30.08.2024 have

been annexed. The said minutes, in clear terms reveal that the bid of the

petitioner was duly considered. There is a clear finding that so far as the

Experience Certificate is concerned, the same was in connection with a park

having only visitors’ sitting arrangement and LED lights with poles. The scope of

the work of the present NIT can be fully understood by the list of equipment

and facilities as given in Annexure-A which, admittedly, the petitioner does not

fulfill. Shri Chakraborty, learned counsel may be correct in contending that

Clause 27 is only with regard to providing insurance cover for the equipment

mentioned in Annexure-A. However, the said list in Annexure-A also clearly gives

the scope of the work. On this point, it would be required to mention the

eligibility criteria which contain a list of mandatory documents which includes in

Sl. No. 5, an Experience Certificate. For ready reference, the same is extracted

hereinbelow:

“5. Certificate in respect of satisfactory completion of similar nature of

works under Govt. or semi Govt. department during last two years along

with work order (Tenderer must have completed same nature of work at

least one number in single work order in the last 2 financial years ending

on 31-03-2024 under Govt./Semi Govt. or under any public sector

undertaking).”

16. It may be noted that such certificate of satisfactory completion has to be

of similar nature of works which have been further explained as same nature

of work.

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17. The SMB, while considering the respective bids had taken note of the fact

that the experience claimed by the petitioner cannot be held to be either of

similar nature or same nature. In fact, in the minutes of meeting held on

19.08.2024, the same has been clearly reflected prior to which, a further

opportunity was granted in the minutes of meeting dated 31.07.2024 to have a

clear view of the experience claimed by the petitioner from the employer,

namely, Hailakandi Municipal Board. This Court has also noted that in the

subsequent minutes of meeting dated 30.08.2024, the petitioner was himself

present and his views were taken wherein, he had clearly expressed that he did

not have such experience of running any amusement park. The further

explanation that he can reduce the expenditure by engaging family members

who would serve voluntarily does not inspire confidence and may also invite

other legal complications. There is also a proper discussion on the bid of the

respondent no. 8 regarding his vast experience in running the parks for the last

23 months, coupled with the fact that he was agreeable to increase his offer to

57%.

18. With regard to the argument advanced on behalf of the petitioner that

there is a difference in the area of the park mentioned in the NIT and the

affidavit, the same has been explained by the learned Senior Counsel for the

SMB that mention of 400 sq. mt. is only with regard to the excluded area

allotted for “Khao-Gallis”. This Court is also of the view that when both the parks

in question have been specifically mentioned in the NIT dated 22.07.2024, the

aforesaid submission cannot be countenanced inasmuch, as an intending bidder

is otherwise also required to have a fair idea of the work for which the bid has

been submitted.

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19. At this stage, it would also be required to put on record the stand of the

petitioner himself, taken in the affidavit-in-reply filed on 04.03.2025 to the

affidavit-in-opposition of the respondent nos. 6 and 7 (SMB). In paragraph 7 of

the same, the following has been stated:

“7. That, as regards the statements made in paragraph 6 of the Affidavit

in opposition filed by Respondents No. 6 & 7, your deponent begs to state

that the quantum of lease area for Gandhi Bagh and Norsingtola Park was

mentioned as 400 Sq.mt. in the NIT dated 22.07.2024 issued by

Respondent No. 7 himself and now, as a complete somersault, the same

Respondent No. 7 is deposing on oath that the lease area of Gandhi Bagh

and Norsingtola Park consists of 6400 sq.mt. Had your deponent been

aware of the quantum of lease area is 6400 sq.mt. instead of 400

sq.mt. as depicted in the NIT itself, your deponent would never have

participated in such Tender process.”

20. It clearly appears that the petitioner himself admits that he does not

possess the requisite experience of running a similar/same nature of work which

is a mandatory requirement of the aforesaid NIT.

21. In the conspectus of the aforesaid discussions, this Court is of the opinion

that the impugned decision making process is based on relevant and germane

considerations and there is no element of any arbitrariness in the same. The

impugned decision making process also does not appear to be vitiated by any

mala fide.

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22. In view of the above, the writ petition fails and accordingly, the same is

dismissed.

23. No order as to cost.

JUDGE

Comparing Assistant